Van Der Linden v. Khan

FROM
THE 415TH DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO.
CV16-0633

PANEL:
SUDDERTH, C.J.; GABRIEL and KERR, JJ.

OPINION

BONNIE
SUDDERTH, CHIEF JUSTICE.

I.
INTRODUCTION

In four
issues, Appellant Kathryn Van Der Linden brings this
interlocutory appeal of the trial court's denial of her
chapter 27 motion to dismiss Appellee Dr. Nadeem Khan's
lawsuit against her. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.001-.011 (West 2015), §
51.014(a)(12) (West Supp. 2017). We affirm in part and
reverse in part the trial court's order and remand this
case to the trial court for further proceedings.

II.
BACKGROUND

A.
The Parties

Khan is
a board-certified family practice physician who, after
graduating from medical school in 1996, moved from Pakistan
to the United States to complete his residency at John Peter
Smith Hospital in Fort Worth. At the time the lawsuit was
filed, Khan was the Chief Executive Officer of Tri Cities
Urgent Care, located in Willow Park, Texas.

Van Der
Linden is a retired colonel in the United States Air Force.
Her twenty-four years of service in the USAF included a
deployment to Iraq, where she served for five months in the
trauma hospital at Balad Air Base.

Van Der
Linden and Khan were neighbors in Parker County, Texas, and
Van Der Linden said that she and her husband considered Khan
and his wife friends. Their children attended the same
school, and at one point, Van Der Linden was one of
Khan's medical patients.

B.
The Initial Controversy

According
to Van Der Linden, one evening in July 2015 when she and her
husband were having dinner in the Khans' home, she and
Khan engaged in a private conversation in the kitchen about
the United States military presence in the Middle East.
According to Van Der Linden, during that discussion, Khan
told her that he had given money to the Taliban. Van Der
Linden described herself as shocked when Khan said this, and
she immediately questioned Khan as to why he would do such a
thing. Khan's explanation, according to Van Der Linden,
was that his grandfather, who had worked with the CIA, had
related to him how he had witnessed the United States
"'flip[ping] sides' with different
administrations."

Khan
denies that this conversation ever took place. In his
affidavit, he further posited that "[i]t defies logic
that [he] would make such a radical statement to a former
Colonel of the United States Air Force."

According
to Van Der Linden, approximately one week later, she
questioned Khan again about why he would donate money to a
terrorist organization.[1] During that conversation, Van Der
Linden said that she told him about a "horrific
mass-rape event-perpetrated by the Taliban upon every female
in a village, from infant to elderly, " the aftermath of
which a friend of hers, who had also been deployed to Iraq,
had witnessed and later told her about. In a reaction Van Der
Linden described as "odd, " Khan allegedly
responded to this story "by saying the event was bad,
and that he really preferred animals over people."
According to Van Der Linden, he said, "[I]f he passed an
injured person on the side of the road versus a wounded
animal, he'd rather stop for the animal."

Khan
also denies that this conversation ever took place, and in
his affidavit, he pointed out that he had "devoted [his]
career and life to treating individuals as a medical
doctor."

Van Der
Linden claimed that Khan's wife Shannon was present for
this second conversation, but neither side offered
Shannon's testimony into the record.

According
to Van Der Linden, these two conversations concerned her,
especially given her military career in which she had
"seen firsthand the horror that terrorist organizations,
such as the Taliban, have produced." Van Der Linden felt
obligated to inform others of what Khan had told her because,
in her opinion, Khan's statement that he had given money
to the Taliban was a matter of public concern. No one
disputes, however, that Van Der Linden waited more than five
months to act on this sense of duty.

C.
Van Der Linden's Message

In
January 2016, Van Der Linden sent the following message to
the Facebook accounts of Khan's business
associates-Beverly Murphy, Tim Murphy, and Loretta Sheldon
Murphy[2]-via Facebook Messenger, [3]

You are partnering with a Muslim who has told me, PERSONALLY
(not via hearsay) that he has given money to the Taliban. The
fact that Shannon Khan is my neighbor has nothing to do with
anything. I was deployed to Iraq for 5 months at a trauma
hospital at Balad AB, and retired as a Colonel in the USAF.
ANYONE who gives money to the Taliban is my enemy. No lawyer
you can hire will undo terrorist involvement. Good luck.
Kathy Van Der Linden, Col (USAF retired).

She
received no response to the Message.

The
record is vague as to how Van Der Linden obtained the names
of Khan's business associates. Van Der Linden claims that
she "became aware" that Khan had a potential
business venture pending with "relatives of a woman
named Melissa Murphy Miller." According to Van Der
Linden, by looking at the "Friends" on Miller's
Facebook page, she was able to identify the individuals-
Beverly Murphy, Tim Murphy, and "Loretta Sheldon"
Murphy-who she "thought might be Miller's
relatives."

Khan
provided a different explanation. In his affidavit, Khan
claimed that he had "come to learn" that Van Der
Linden and his by-then-estranged wife Shannon[4] had "placed
spyware on [his] personal computer at [his] residence and
accessed [his] personal email accounts." According to
Khan, Van Der Linden had learned the identities of his
business associates by "gaining access to" his
computer and email accounts.

In her
supplemental affidavit, Van Der Linden neither elaborated on
how she initially "became aware" that Khan had a
potential business venture pending with "relatives of a
woman named Melissa Murphy Miller" nor denied that she
had accessed Khan's personal computer, either
individually or in concert with Shannon. But as to the
allegation that she placed spyware on Khan's computer,
she swore that she had "never placed spyware" on
Khan's computer and that she had no knowledge of
"any other person, including Shannon Khan" having
placed spyware on his computer.

As to
her motives, Van Der Linden explained that she sent the
Message because of her "concern for community well-being
and safety, " and to "inform [Khan's
associates] about his claimed involvement with a terrorist
organization and enemy of the United States." She also
stated that she believed that "if the business deal went
through, part of these people's money could contribute to
killing members of our military in Pakistan and Afghanistan,
and possibly attacking other United States' interests
domestically and abroad."

D.
The Aftermath

According
to Khan, at the time the Message was sent, he had an oral
agreement with Sheldon Murphy wherein Khan

would find a seller/producer to sell crude oil and/or other
hydrocarbon products. The crude oil and/or other hydrocarbon
products would be provided by a third-party. Sheldon Murphy
and [Khan] would split the greater of ten-cents ($.10) or
ten-percent (10%) of the margin per each barrel of crude oil
or other hydrocarbon products.

In
furtherance of that agreement, Khan claims that he "had
found a seller/producer to purchase 60, 000 metric tons of
crude oil" and that he would have received approximately
$30, 000 as a commission from this transaction had the
agreement gone forward.

In
addition, Khan said he was in the process of negotiating
another agreement with Sheldon and Loretta Murphy to purchase
a 50% interest in WHAM, LLC. According to Khan, WHAM-an
acronym for Wellhead Automation and Measurement-was a North
Dakota company that "specialize[d] in gas flow
measurement in the oil and natural gas industry." Khan
said he had incurred $250, 000 in attorney's fees in his
attempt to consummate this agreement, and he attached to his
response purported drafts of documents related to the
agreement. Had this deal been completed, Khan expected it
would have been "lucrative, " and he estimated that
his profits would have exceeded $500, 000. According to Khan,
in anticipation of this deal, he had already obtained
"[$]23.3 million in grants that would go to the
company."

But the
deal did not go through. According to Khan, while he and
Sheldon and Loretta Murphy were in the process of
"working out the finer details of the written agreement,
" Van Der Linden sent the Message to them. Khan said
that right after Sheldon received Van Der Linden's
Message, Sheldon called him and, "in an excited manner,
" asked Khan, "What the f--- is going on!"
According to Khan, Sheldon told him that he had just received
Van Der Linden's Message "and then stated that he
could not proceed with the plan." After Van Der Linden
sent the Message, neither the oral agreement nor the pending
WHAM deal went forward.

E.
The Lawsuit

Khan
sued Van Der Linden for tortious interference with contract
and with "prospective advantage/business relations"
and for "defamation/defamation per se" and sought
damages and injunctive relief. Van Der Linden sought
dismissal of all of his claims under chapter 27. After the
trial court denied Van Der Linden's motion to dismiss,
Van Der Linden brought this interlocutory appeal in which she
contends that Khan failed to meet his burden to establish a
prima facie case on each element of his claims by clear and
specific evidence. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-.011, 51.014(a)(12).

Summary
disposition is achieved through the TCPA's provision for
expedited dismissal of lawsuits. The statute permits a
defendant, within 60 days of service of the lawsuit, to seek
dismissal of the lawsuit by challenging the plaintiff to show
prima facie evidence to support his claim. Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.003, .005. The movant is
entitled to an expedited hearing and, if ultimately
successful on the motion, an award of court costs, reasonable
attorney's fees, and other expenses incurred in defending
against the legal action. Id. §§ 27.004,
.009; Sullivan v. Abraham, 488 S.W.3d 294, 295 (Tex.
2016).

Dismissal
under TCPA involves a two-step process. First, the
defendant-movant has the burden to show by a preponderance of
the evidence that the plaintiff's claim "is based
on, relates to, or is in response to, " among other
things, "the [movant's] exercise of the right of
free speech." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b); Schofield, 2017 WL 2180708, at
*10. If the movant satisfies this burden, then the burden
shifts to the plaintiff-respondent to establish "by
clear and specific evidence a prima facie case for each
essential element of the claim in question." Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(c).

The
clear and specific evidentiary standard may be satisfied by
direct or circumstantial evidence. See Hand v.
Hughey, No. 02-15-00239-CV, 2016 WL 1470188, at *4 (Tex.
App.-Fort Worth Apr. 14, 2016, no pet.) (mem. op.)
(explaining that the clear and specific standard
"'neither imposes a heightened evidentiary burden
nor categorically rejects the use of circumstantial evidence
when determining the plaintiff's prima-facie-case burden
under the Act.'" (quoting Andrews Cty. v. Sierra
Club, 463 S.W.3d 867, 867 (Tex. 2015))). But, as the
supreme court has directed us, such evidence must be provided
with some degree of detail. Lipsky, 460 S.W.3d at
590-91 (requiring "enough detail to show the factual
basis for [the plaintiff's] claim"). In the context
of a defamation case, pleadings and evidence that establish
the facts of "when, where, and what was said,
the defamatory nature of the statements, and how they damaged
the plaintiff" should suffice to overcome a challenge
under the TCPA. Id. (emphasis added).

In her
first issue, Van Der Linden argues that she met her burden in
the first step of the process by showing that the TCPA
applies to Khan's underlying lawsuit against her.

Khan's
response is two-fold. First, he argues that because the
policy reasons underlying the TCPA are not present in this
case, the TCPA does not protect Van Der Linden's Message.
Second, he argues that Van Der Linden has not met her burden
to show that the Message was an exercise of the right to free
speech as that term is defined by the TCPA. Thus, Khan
contends that because his lawsuit was not based on Van Der
Linden's exercise of her right to free speech, Van Der
Linden failed to establish that she was entitled to file a
motion to dismiss.

Khan
maintains that the underlying policy of the TCPA requires us
to make one ultimate determination-"whether [Khan]'s
lawsuit was brought to 'chill' Van Der Linden's
First Amendment Rights or rather to bring a meritorious cause
of action against Van Der Linden." He suggests that if
we determine that the lawsuit was not brought to chill Van
Der Linden's First Amendment rights but was instead
brought to assert meritorious complaints against her, then
she is not entitled to seek dismissal under the TCPA. Khan
contends that because he did not bring his action because Van
Der Linden exercised her right to free speech- but instead
solely because Van Der Linden intentionally interfered with
Khan's business deals-that she has not met the first
prong of the test. We disagree.

Section
27.003 provides that "[i]f a legal action is based
on, relates to, or is in response to a party's
exercise of the right of free speech, " that party may
file a motion to dismiss the action. Tex. Civ. Prac. &
Rem. Code Ann. § 27.003(a) (emphasis added). The
question, then, is not whether Khan brought his lawsuit for
the purpose of chilling Van Der Linden's First Amendment
rights. The question is whether Khan's lawsuit is
"based on, relates to, or is in response" to Van
Der Linden's exercise of her right of free speech.
See id.

"Exercise
of the right of free speech" is defined as "a
communication made in connection with a matter of public
concern." Id. § 27.001(3). A
"[m]atter of public concern" is defined as, among
other things, "an issue related to health or safety [or]
environmental, economic, or community well-being."
Id. § 27.001(7)(A)-(B). And the TCPA applies to
both public and private communication. See ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017)
(referencing Lippencott v. Whisenhunt, 462 S.W.3d
507, 508-09 (Tex. 2015)). Thus, under this statutory
framework, if the Message was "made in connection
with" an "issue related to health or safety [or]
community well-being, " it would fall squarely within
the statute. Tex. Civ. Prac. & Rem. Code Ann. §
27.001(1), (3), (7)(A)-(B).

For
reasons so obvious that further elaboration should not be
necessary, financial support for a terrorist organization is
an issue related to safety and community well-being.
Consequently, issues related to this topic are
"matter[s] of public concern, " as defined by the
TCPA. See id. § 27.001(7)(A)-(B). Since Van Der
Linden's message was made in connection with a matter of
public concern, it constituted an "exercise of the right
of free speech, " as that term is defined in the
statute. See id. § 27.001(3). Public policy or
legislative intent notwithstanding, our inquiry ends
there.[5]See Alex Sheshunoff Mgmt. Servs.,
L.P., 209 S.W.3d at 651-52.

Because
we hold that the Message was a communication made in the
exercise of the right of free speech as defined by the TCPA,
we sustain Van Der Linden's first issue.

B.
The Second Prong - Clear and Specific Evidence

Because
Van Der Linden demonstrated that Khan's lawsuit
implicated her exercise of the right of free speech, to
prevent dismissal of the action, the burden shifted to Khan
to prove, by clear and specific evidence, a prima facie case
for each essential element of his claims against her.
See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(b) (providing that the court "shall" dismiss
the action if the movant shows that the action relates to the
exercise of the right of free speech), (c) (providing that
the court may not dismiss the action if the opponent
"establishes by clear and specific evidence a prima
facie case for each essential element of the claim in
question"). In her second issue, Van Der Linden argues
that Khan failed to meet his burden of establishing, by clear
and specific evidence, a prima facie case for each essential
element of his alleged claims against her for tortious
interference with contract, tortious interference with
prospective business relations, and defamation/defamation per
se. We take each cause of action in turn.

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